FILED: NEW YORK COUNTY CLERK 02/09/ :22 PM INDEX NO /2016 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 02/09/2018

Transcription

1 MOTION 5002 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DANIELLE DRAKE, Index No /2016 Plaintiff, AFFIRMATION -against- IN OPPOSITION 605 THIRD AVENUE FEE LLC and FISHER Return Date: 2/22/2018 BROTHERS MANAGEMENT CO. LLC, Defendants X 605 THIRD AVENUE FEE LLC and FISHER Hon. Barbara Jaffe BROTHERS MANAGEMENT CO. LLC, Third-Party Plaintiffs, 7 Third-Party -against- Index No /2017 W&W GLASS, LLC, X Third-Party Defendant. JUSTIN M. ROWE, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate with the firm of DEVITT SPELLMAN BARRETT, LLP, attorneys for the plaintiff, DANIELLE DRAKE, and as such, I am fully familiar with the pleadings and proceedings heretofore had herein, 2. This action involves personal injuries sustained by Danielle Drake while using a defectively maintained and installed revolving glass door. Following commencement of the action, defendants impleaded W&W Glass seeking contribution and indemnification for these injuries alleging that W&W Glass negligently installed and maintained the revolving doors, 1 1 of 8

2 Despite these allegations, defendants now seek to reargue a discovery order that required them to disclose installation and maintenance records, repair records, and prior accident records. Of course, motion has no merit, and is just the latest stunt to protract litigation and disobey multiple court orders. 3. To date, defense counsel has not provided insurance information despite numerous court orders,¹ defense counsel previously requested lengthy adjournments of conferences under the guise of trying to resolve the matter, but then stated that they were "no pay."2 They sent attorneys to conferences with no authority to discuss the matter or resolve discovery issues, they failed to disclose records of a prior accident in the same revolving door weeks before even though plaintiff has a record of the accident,3 accident, and they failed to disclose a contract between defendants and Plaza Construction, who subsequently hired W&W Glass.4 4. Accordingly, I submit this Affirmation in Opposition to motion to reargue the Court s decision dated December 14, 2017, which directed the defendants to produce maintenance and installation logs related to the subject revolving doors, records and memoranda of prior accidents involving the revolving door that injured plaintiff, and for subsequent maintenance and repair records. 1 See Court Orders, Exhibit 2 See Stipulation, Exhibit "B," "A." 3 See Accident Report from AECom, the building's tenant, Exhibit "C." 4 Plaintiff's counsel was advised by Plaza Construction that Wilson Elser also represented Plaza in other cases. At a conference, Wilson Elser advised that they needed to adjourn oral arguments on this motion to check for possible conflicts (Stipulation, Exhibit "D"). There is a potential that Wilson Elser is not providing insurance information/policy or the underlying Plaza Construction Contract due to a conflict of interest, which would of course be improper, It is clear from the subcontract that a prime contract exists, but was not disclosed. (See Subcontract, Exhibit "E"). It is requested that the Court require an affidavit from defense counsel to be reviewed in camera showing that no conflict exists and that the Plaza Construction prime contract does not exist. 2 2 of 8

3 POINT I DEFENDANTS' OBJECTION THAT THE INSTALLATION AND MAINTENANCE REMOTE" RECORDS ARE "TOO IS FRIVOLOUS SINCE THE INSTALLATION TOOK PLACE APPROXIMATELY TWO YEARS PRIOR TO THE ACCIDENT, AND THE BILL OF PARTICULARS ALLEGES NEGLIGENT INSTALLATION 5. Defendants again raise an objection to installation records alleging that the installation was "too remote," remote." Defendants' counsel misrepresents in his Affirmation that this would include "decades of records." Defendants fail to advise the Court that the installation of the door occurred approximately two years before the accident, which is demonstrated by the subcontract defense counsel provided in discovery. Similarly, any objection to the maintenance records is misplaced. There is no misapplication of the law or facts as defense counsel contends in his Motion to reargue. The Court correctly understood that the Bill of Particulars alleged specific negligence for: failing to maintain the aforesaid premises and the front entrance and revolving door in a reasonably safe condition, in good repair, free and clear of defects, and in compliance with New York State Building Construction Code, any other applicable statute and/or regulations; failing to exercise proper and safe ownership, maintenance, supervision, construction, control and operation of the aforesaid premises and the front entrance and revolving door; failing to keep the subject premises free from dangerous, defective and hazardous conditions; failing to adequately inspect, maintain and/or supervise the front entrance and revolving door of the aforesaid premises. (Bill of Particulars, Exhibit "F"). The doors were installed approximately two years before the accident. It is neither controversial nor unsettled that such records are discoverable, Clearly, the installation and entire maintenance records are both material and necessary to prosecution of the allegations alleged in the Bill of Particulars and Complaint. Allen v. Crowell-Collier Publishing 3 3 of 8

4 (" Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449 (1968) material and necessary" is to be interpreted broadly). 6. If the records were truly "too remote," defendant can make the appropriate trial objection. Interestingly, defendant cites three cases and wrongfully advises this Court that they support his position that prior maintenance and installation records should not be disclosed as too remote. Defense counsel clearly misreads the cases as they actually support disclosure. In Maldonado v. Novartis Pharmaceuticals Corp, 58 A.D.3d 813 (2d Dep't 2009, Marotta v. Massry, 279 A.D.2d 877, and Bray v. Gluck, 235 A.D.2d 72 (3d Dep't 1997), which are the cases relied upon by defense counsel, the Court was addressing whether summary judgment was proper. None of the cases addressed discovery. Moreover, the issue in each of these cases was whether a maintenance or repair records could constitute prior actual notice; thus, the evidence of the prior notice was previously disclosed in discovery thereby undermining defendant's position on this motion. 7. Nevertheless, the records at issue here are not discoverable for only the purposes of notice, but they are discoverable to determine what maintenance was performed, when it was performed, who performed the maintenance, and whether the maintenance was negligent, as alleged in the Complaint. The records are also discoverable since they are relevant to the negligent installation of the subject revolving doors. 8. Therefore, the installation and maintenance records of the revolving door involved in this incident are discoverable, 4 of 8

5 POINT II THE COURT DID NOT MISAPREHEND THE ESTABLISHED CASE LAW THAT STATES PRIOR ACCIDENT REPORTS OI<' ARE RELEVANT ON THE ISSUE OF NOTICE 9. Defendant states that the Court misapplied the law and that only reports or memorandum regarding prior similar accidents are discoverable. Any prior accident involving the revolving door that injured Danielle Drake is similar. Plaintiff's counsel knows of at least one prior accident involving another tenant injuring his/her head on the same revolving doors. (AECOM Memo, Exhibit "C"). Notably, there has been no disclosure from defense counsel regarding this incident. Additionally, defense counsel again confused the difference between a trial objection and discovery objection. With regard to the issue of "similarity," defense counsel does not unilaterally get to make this determination-especially given the history of this litigation where defense counsel has failed to disclose relevant contracts as well as statutory discovery of insurance. Rather, the records should be disclosed and arguments on exclusion should be made at the time of trial in a motion in liminie. 10. Nevertheless, the Court properly ordered disclosure of these records since, CPLR 3101(g) provides that written accident reports prepared in the regular course of business are relevant. Moreover, in James v. Metro North Commuter Railroad, 166 A.D.2d 266 (1st Dep't 1990), the First Department held discovery request for regarding prior lawsuits were at issue was not overbroad. 11. In Coan v. Long Island Railroad, 246 A.D.569, 668 N.Y.S.2d 44 (2d Dep't 1998), the Court held "[r]ecords of prior similar accidents are admissible and discoverable in a negligence action since they are relevant in establishing that a particular condition was dangerous and that the defendant had notice of that condition." citing Klanz v. Armor Elevator 5 5 of 8

6 Co., 93 A.D.2d , 462 N.Y.S.2d 677; Lestingi v. City of New York, 209 A.D.2d 384, 385, 618 N.Y.S.2d 731; Taylor v Doe, 167 A.D.2d 984, 562 N.Y.S.2d Given the established case law and statutory authority, position to not provide all accident reports involving injuries that involve the same evolving door is another example of the frivolous conduct defendants have engaged in in delaying this litigation. Accordingly, all prior accident reports are discoverable. POINT IH SUBSEQUENT REMEDIAL MEASURES ARE DISCOVERABLE TO DEMONSTRATE CONTROL OVER THE MAINTENANCE OF THE REVOLVING DOORS AND TO ESTABLISH THE CONDITION OF THE REVOLVING DOORS AT THE TIME OF THE INCIDENT 13. Defendant is also seeking reargument on disclosure of subsequent repairs. The crux of defendant's argument is that the Court misunderstood the law on admissibility of repairs, and he cites to law on admissibility. However, discoverability and admissibility are not equivalent. Rather, if evidence may be admissible, it is discoverable. Defendant objects to any record showing repairs or maintenance after the accident date. Defendants' objection is misplaced. 14. The Court was correct in ordering this disclosure because defendant commenced a third-party action, which alleges, among other things, contribution and common law indemnification for the claim of negligent maintenance of the revolving doors (Third-Party Complaint, Exhibit "G"). It is well settled that post accident conduct is admissible to show defendant's control and domain over the cause of the accident. Scudero v, Campbell, 288 N.Y.328, 329 (1942); Wigmore on Evidence [3d Ed] 283, p.158; CPLR 3101(a); Hugh v. Cold Spring Constr. Co., 26 A.D.3d 858, 859, 809 N.Y.S.2s 751, 753 (4* Dep't 2006). 6 6 of 8

7 I5. Defendants' Third-Party Complaint puts at issue who was responsible for control and maintenance of the revolving doors. Thus, these records are not only discoverable, but also admissible. O'Callaghan v. Walsh, 211 A.D.2d 531, 532, 621 N.Y.S.2d 343, 344 (1" Dep't 1995). 16. The Court was also correct in ordering the subsequent repair records from being disclosed to show the condition as it existed at the time of the accident. Stone v. Town of Poland, 30 N.Y.S. 748 (Sup 1894; Hillesum v. City of New York, 56 N.Y.Super Ct. 596m 4 N.Y.S. 806 (" (1889); 79 N.Y. Jur. 2d Negligence 219 ("Evidence of repairs, alterations, or precautions made or taken after an accident may be material and relevant to the issue of the control and maintenance of the structure or instrumentality claimed to have caused the injury. Evidence as to post-accident repairs or alterations has also been deemed admissible to show conditions at the time of the accident, to identify the cause of the injury, and for the purpose of rebuttal or impeachment.") 17. Notably, defense counsel submits no Affidavit asserting that the condition of the revolving door has not been altered since the date of the accident. He also submits no Affidavit regarding whether replaced parts were kept for the pendency of the litigation. These are issues related to areas of potential spoliation that need to be addressed at defendant's depositions. Further, the lack of such Affidavit shows that whether the condition of the revolving door has changed since the accident remains at issue, and the plaintiff's engineer is entitled to this information. 18. Accordingly, there the Court did not misapprehend any law or facts, and plaintiff is merely rehashing the same meritless arguments that failed in the underlying motion. WHEREFORE, plaintiff respectfully requests that Motion to reargue be 7 7 of 8

8 I denied in its entirety, together with such other and further relief as to this Court may seem just and proper, Dated: Smithtown, New York February 7, JUS IN M. ROWE, ESQ. I II I 8 8 of 8